So who gives executives of private companies the right to decide that some unapproved speech will be encouraged and some will be suppressed? Do we want the people who run Amazon, PayPal, Facebook, Twitter or perhaps even - shudder - Microsoft, Apple or Google making political decisions on our behalf?
Eugene Robinson asks that question in his column today, titled In WikiLeaks aftermath, an assault on free speech. This is the first of his three concluding paragraphs.
It is an appropriate question for a writer at the Washington Post to be asking, especially given that apparently our Justice Department has empaneled a secret grand jury in Alexandria seeking to indict Julian Assange.
I will not fully explore Robinson's column, in which he recapitulates the history of ISPs and governments trying to stop Wikileaks, and the various cyber attacks for and against Wikileaks. You can read those yourself.
I want to explore the question he asks, and the conclusions he offers.
The next of Robinson's paragraphs, his penultimate, begins to answer the question he raised, and reads as follows:
For my part, I don't think I do. It seems to me that especially as Internet firms reach near-monopoly status, we should be increasingly uncomfortable with them making political decisions of any kind - even those with which we might agree.
Here I have to focus on the final words first - we should not be accepting perversions of basic principles whether they advantage our political interests or not. For those of us who depend upon the internet the way we do here, we should never rationalizing shutting off debate or expression even of noxious points of view. We should be willing to fully engage in the marketplace of ideas with the belief that we can counter anything that is wrong or distorting with truth and superior argumentation.
Of course, beyond the matter of corporate censorship, which is what is represented by actions such as Amazon refusing its servers to Wikileaks while continuing to provide them to KKK related organizations is the further question of access to information necessary to make such arguments.
The idea that our government, absent an official secrets act, would be trying to establish the principle of one by distorting the Espionage Act - which is long overdue for repeal or at least major revision - into something that could be used for such a purpose is yet another reason many of us are distraught at how we see this administration operating.
Might I remind people that it was the Espionage Act that was used in the prosecution of Schenck during WWI, in a case that when it reached the Supreme Court established the principle of "clear and present danger" (pace Oliver Wendell Holmes, Jr.) that was for so many years used to suppress speech from the far left, but not used similarly to suppress that of the far right?
But let me return to Robinson, to his final paragraph:
I don't particularly enjoy defending Assange, WikiLeaks or a bunch of irresponsible hackers. But I don't want the companies that regulate interaction and commerce on the Internet deciding whose views are acceptable and whose are not. The "terms of service" agreement that should take precedence is the First Amendment.
In general I agree with these words. I think more is needed.
First, the companies will argue, as Robinson points out in his piece, that their terms of service give them the right to shut off the likes of Wikileaks - in Amazon's case, it requires that users "own or otherwise control all of the rights to the content" they post on its servers. Further, they may claim that under current law allowing such content on their servers exposes them to unacceptable risk. Given some of what has been established in the previous administration, with the FBI on its own authority seizing equipment of those presumed to be giving material aid to terrorists, that is not an illegitimate concern. Further, I can imagine a government agency being nefarious enough to include in material that might be obtained by an organization such as Wikileaks embedding a kiddie porn file, and current law also allows seizure of equipment upon which such material is found - and as far as I know the law makes no distinction of whether the person even knew such material was there. One should consider the implications of how this operates.
We are of course well aware of the idea of corporate censorship of unpopular ideas. It is one reason we advocate so fiercely for net neutrality. And given the freedom to play political that the current Supreme Court has given corporations through the use of their money, it is hard to see how they would find such censorship of ideas repugnant to the First Amendment. In fact, I can well imagine the likes of Scalia and Thomas and Alito and Roberts arguing that requiring ISPs to carry content with which they disagree is a violation of their free speech rights. This is an important part of this issue that Robinson does not address.
If our democracy is going to survive, we will have to have access to information. We should not be allowing the government to further restrict access to information necessary for the people to properly ascertain whether that government is acting in the best interests of the people and the nation. How else can we exercise our rights as We the People to control the government through ourn political decisions if we are denied the information upon which to make those decisions? We are insufficiently informed now, and moving in the direction of further restriction of information will make that impossible.
Further, the Government already selectively releases otherwise classified material to make the case for positions and actions and legislation it favors. This town - remember, I live in metro DC - would shrivel up without the barrage of leaks that readily fuel the major media. At what point is allowing them to publish otherwise classified information and going after Wikileaks become an unacceptable violation of the Equal Protection clause of he 14th Amendment?
The Wikileaks case raises a number of important issues. Whether or not we think national security has been jeopardized, even in that case is not the real question better addressed by examining how classified and unclassified information is mixed in the same data base, without proper control for who can access what? Is not there an issue of overuse of classification so that particular categories become almost meaningless?
Should not we have a thorough debate over the nature of information and how the protections of the First Amendment need to be applied in a world in which information and its transmittal are now very different?
If, as Robinson notes, use of social media to counter government repression in Iran and China is something we applaud, how can anyone justify restricting those media - by the corporations or by the government - when the government in question is our own? How do we prevent our government from moving in the direction of repression?
We should not be surprised to see corporations acting in a fashion similar to what we expect from repressive governments. After all, to date we have not argued that the First Amendment applies to corporations.
But we are in an age when corporations increasingly do government work. They run prisons, they provide security for public officials, they run schools, they do essential tasks for the military. Insofar as they are doing the work of the public should not we rethink how they are regulated to ensure that merely using a corporation is not a back-door way for governments to get around the restrictions either of the Constitution or of specific Congressional intent to restrict the government? Think for example of Poindexter's Total Information Awareness. Congress stopped the government from doing it directly, but left open the door that allowed Rumsfeld to contract out the same effort to private corporations.
I think Robinson's column raises some interesting points. I do not think it goes far enough, and even in my exploration of issues I have only begun to scratch the surface of what needs to be addressed.
There is an assault ongoing. Free Speech is one thing under attack, but so are habeas corpus, the Fourth Amendment, the Fifth Amendment, and the Eighth Amendment. They have been under attack and the refusal of the current administration to go after or even expose the wrongdoings of its predecessor allows certain precedents to lie out there not fully challenged.
We are at risk. Those of us who depend on these new media to become informed, to communicate and organize, whose views might now not be in the majority, are at particular risk.
It is Free Speech under assault to be sure.
I would argue it is broader.
It is the idea of democracy itself. It is the idea of popular sovereignty in a governmental system where rights are protected and the government is restricted by constitutional provisions.
And if nothing else, the Wikileaks case offers just one more reason why we may need to seriously rethink the idea of corporate personhood.
My thoughts.
What are yours?